EPA preparing to back off mountaintop removal

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Federal regulators are preparing to back off their harsh criticism of mountaintop removal coal mining.U.S. Environmental Protection Agency officials are negotiating a deal that would give Arch Coal Inc. at least part of a controversial, 3,100-acre mountaintop removal permit in Logan County.EPA officials hope to reach agreement soon on the plan, so that Arch Coal subsidiary Hobet Mining can avoid laying off nearly 400 workers at the end of December."We're trying to move as expeditiously as we can," said Dan Sweeney, an environmental engineer with EPA Region III in Philadelphia. "We're just trying to get something resolved that would be equitable and perhaps get them started."

EPA's handling of the Hobet permit could set a precedent for dealing with several other pending mountaintop removal applications the agency has objected to, and for dozens of other future mountaintop removal permits.West Virginia's congressional delegation and two U.S. senators have recently pressured EPA and other agencies to move forward with the Hobet permit and other mountaintop removal applications.An environmental activist said coal companies are using the threat of job losses to blackmail government agencies into issuing permits.EPA officials insisted they haven't made up their mind yet."This is still in the negotiation and discussion stage," Sweeney said. "It's just not nailed down."Hobet Mining wants the 5-square-mile permit - the largest in state history - to expand its Dal-Tex mountaintop removal complex near Blair.The new permit would move mining east, across W.Va. 17, from the current Dal-Tex operation.
The mine expansion would dig about 80 million tons of coal, perhaps $2 billion tons worth of coal, over 15 years. The mine would also bury six miles of Pigeonroost Branch and nearby tributaries with 150 million cubic yards of rock and earth mine waste valley fills.In late October, Arch Coal announced that, if it didn't receive the permit by Dec. 31, it would start to lay off up to 400 miners who work at Dal-Tex.Four days later, state Division of Environmental Protection Director Michael Miano issued a state mining permit for the operation. Miano said he and Gov. Cecil Underwood wanted to do whatever they could to avoid the layoffs.Mining of the expanded operation is still being held up by an EPA objection to the state issuing a federal Clean Water Act permit for the mine.

In June, EPA Region III Administrator Michael McCabe said the permit could not be issued because the mine's proposed valley fills would violate federal and state rules that prohibit degradation of streams and water quality.

In response to a Gazette Freedom of Information Act request, Sweeney stated in April that, "since valley fills cover stream beds and smother any aquatic life present in stream beds, such filling would be an apparent violation of the anti-degradation policy."Last week, however, Sweeney said that EPA may be prepared to grant Hobet Mining a permit for the Dal-Tex expansion and its valley fills.During a meeting Nov. 18, EPA proposed giving Hobet a permit for somewhat smaller valley fills. Sweeney would not say how much smaller the fills might be under the EPA proposal.Under the proposal, Hobet would also have to continue studying the long-term impacts of the Dal-Tex expansion, which the company calls its Spruce No. 1 Mine.Once the long-term impacts are studied more extensively, the company would probably come back and ask for the permit to be expanded to its original size, Sweeney said.

"They contended they ultimately would need all of the fills," Sweeney said. "So they would presumably be interested in coming back to apply for extension of the fills."The Nov. 18 meeting in Huntington was attended by EPA officials, as well as representatives of DEP and the U.S. Army Corps of Engineers.John McDaniel, chief of engineering for Hobet Mining, also attended part of the meeting. Representatives of environmental and citizen groups were not invited. Sweeney said McDaniel seemed receptive to the EPA proposal. David Todd, an Arch Coal spokesman, could not be reached for comment.Even if EPA allows the state to issue Hobet's mining permit, the company may not be able to start mining.Hobet must receive another permit from the Corps of Engineers before it can mine.In July, the West Virginia Highlands Conservancy filed a federal court lawsuit alleging, among other things, that the corps cannot authorize valley fills under Clean Water Act "dredge and fill" permits. If the lawsuit is correct, as previous court rulings suggest it is, then valley fills would have to comply with the act's anti-degradation rules, which EPA says fills can't do.Corps officials have said publicly that they agree with the lawsuit's allegations and have stopped issuing valley fill permits under the dredge and fill provisions.A hearing on a motion for a preliminary injunction against new valley fill permits is scheduled for Thursday before Chief U.S. District Judge Charles Haden II.Cindy Rank, mining chair of the Conservancy, said EPA should wait to see what happens with the corps permit matters before giving Hobet its water pollution permit."EPA can't do anything with this until that is resolved," Rank said. "It is ludicrous for them to go ahead and proceed with a partial permit when they don't know if this is legal in the first place."It would be refreshing to know there was some backbone in some agency that is supposed to protect the natural resources and people of this state without being blackmailed into violating the law," Rank said. "They don't have a clue what to do to enforce these laws."